Special Senate Committee on Senate Reform,  First Report ( Senate tenure) 


The speech below, given October 30, 2006 is extracted directly from the Hansard.

Senator Hays: Honourable senators, I am delighted to have this opportunity to speak to the matter of the first of two reports prepared by the Special Senate Committee on Senate Reform, that is, the report on the subject-matter of Bill S-4. Later this week, I will speak on the report concerning the Murray-Austin motion, which aims to increase senate representation for the western provinces.

Furthermore, in the coming days, I will address the motion aimed at extending the work of our committee, given the many questions raised on page 35 of our report on Bill S-4.

[English]

First, I would like to thank members of the committee and, in particular, the deputy chair, Senator Angus, who have dealt with a complex subject with great insight, efficiency and open-mindedness. Many of our witnesses commended the non-partisan nature and expertise of the Senate, and our committee exemplified both qualities admirably.

Moreover, I would like to thank the clerk, Cathy Piccinin, the Library of Parliament's researchers, led by Dr. Jack Stilborn and all members of staff. No acknowledgement would be complete without highlighting the exceptional dedication of our translators and interpreters. Our schedule of hearings was intense, our deadline for drafting the report fairly short and all staff performed admirably and professionally throughout.

I wish to begin my observations by emphasizing that Bill S-4 as it stands will not affect sitting senators. The views expressed about Bill S-4 are not based on personal interest, but rather are grounded in the involvement and governance of this complex federation we call "home."

I believe that senators have a unique and extensive knowledge and expertise about the Senate's role and that their views on reform will be guided by experience and a desire to make this institution and our federation better.

Honourable senators, it has often been said that calls for Senate reform are one of the enduring features of Canadian political life. Reform of the Senate has been a discussion topic from the earliest years following Confederation. The issue was debated in the House of Commons as early as 1874 and several times after that, as well as in the 1887 interprovincial conference with proposals ranging from outright abolition to allowing the provinces to choose senators.

Despite all this talk of reform, there have been only two constitutional amendments regarding the Senate since 1867, one of which was the mandatory retirement age at 75 enacted in 1965, and the 1982 qualified veto over certain constitutional matters.

As well, over the past 30 years, there have been at least 28 important proposals for Senate reform, including two major constitutional initiatives, none of which have produced change.

Honourable senators, the latest proposal for reform in the Senate was introduced by the government last May. This is the first constitutional proposal regarding Senate reform introduced by a government in over 15 years, and it deserves our careful consideration.

(2030)

When first addressing the issue of Senate reform in their campaign platform the Conservatives said they wanted to create "a national process for choosing elected senators from each province and territory."

As well, in its Speech from the Throne, the government said it was determined to modernize the institution so that it better reflects the democratic values of Canadians and the needs of Canada's regions. In introducing Bill S-4, which would limit the term of new senators to eight terms, the government characterized this bill as a first step in the reform process.

[Translation]

Given the significant change being proposed and the need to examine Senate reform in a broader context in order to help us make a well-considered decision in the matter of this bill, the Senate created a special committee to examine the intent of this measure as well as the Murray-Austin motion. In September, our committee held hearings and received testimony from illustrious parliamentary and constitutional experts, including the unprecedented appearance of a prime minister before a senate committee.

[English]

I must underline that our study was helped by the Prime Minister's willingness to appear before us to explain the bill and to comment on Senate reform. When he testified on September 7, the Prime Minister said that the purpose of Bill S-4 was to "make the Senate more democratic, more accountable and more in keeping with the expectations of Canadians." As well, he indicated the next steps toward a more effective and democratic Senate will take place "hopefully this fall [when the government] will introduce a bill in the House to create a process to choose elected senators."

[Translation]

It is interesting to note that some of the witnesses were of the opinion that any reform should wait until the other changes proposed have been studied, or at least wait for the next element to be put in place. Mr. Gordon Gibson said:

Senate reform cannot be incremental. These things are so intertwined and so many tradeoffs are involved, you have to deal with them all at once. I understand that is a serious constitutional problem that is messy and complex.

However, most witnesses were of the opinion that we could go ahead with this bill, and did point out that we should consider it in the context of a broader reform of the Senate.

[English]

Having long been an advocate of Senate reform I am intrigued by the Prime Minister's promise to elect senators. However, such elections raise numerous important questions. For instance, although having the Prime Minister appoint senators using advice of his or her choice does not violate the Constitution, it does create, as experts pointed out during our committee's hearings, a somewhat illusory situation. Accordingly, even if the current Prime Minister feels bound to appoint senators chosen by advisory or consultative elections, there is no guarantee his successors will.

Honourable senators, it also remains to be seen whether the government's promised follow-up bill will provide a Senate that is appointed through advisory or consultative elections. During our hearings, witnesses did not all agree on whether such reform could be achieved without resorting to section 38 of the Constitution, which requires substantial provincial consent. However, they all agreed that a truly elected Senate would involve major changes to Canadian constitutional law and conventions, and require engagement with the provinces.

Be that as it may, the upcoming bill on electing senators will no doubt figure prominently in the speeches given by honourable colleagues during our discussion of this report as well as during our subsequent debates on Senate reform.

One of the main criticisms of Bill S-4 during the second-reading debate pertained to the bill's constitutionality and whether the government could proceed with the reform without approval from the provinces. However, after hearing from numerous scholars and constitutional experts, the committee concluded that Bill S-4 could proceed under section 44 of the Constitution Act, 1982, which stipulates that Parliament can "exclusively amend the Constitution in relation to the executive Government of Canada, the Senate and the House of Commons."

Some of our witnesses suggested that there was some doubt about this, and that it might be advisable to refer Bill S-4 to the Supreme Court of Canada to establish its constitutionality. For instance, Professor David Smith from the University of Saskatchewan called for such a referral. He argued that it should be established whether the change proposed by the bill was compatible with the Senate's role as protector of regions and minorities, acting with considerable independence from the executive. However, the majority of witnesses felt the constitutional issue was sufficiently clear and that a reference would not be necessary.

In addressing the constitutionality of Bill S-4 and the change in tenure, senators and witnesses often alluded to the Senate Reference, or the Supreme Court's 1979 decision on the Senate. According to the court, a change in tenure appears to be within the powers of Parliament acting alone, or by virtue of section 44, as long as it does not affect a "fundamental feature or essential characteristic" of the Senate.

Most witnesses agreed that shortening terms to eight years would not affect such characteristics, and that Parliament could act alone in implementing this change. However, there was less agreement on how much that tenure could be reduced. As a government witness acknowledged, one year clearly would be too little, potentially allowing for abolition, which constitutionally requires unanimity. Most committee members endorsed the underlying purpose of Bill S-4, namely that a defined limit to the terms of senators would improve the way Canada's Senate operates. Members agreed that limiting terms would provide a more vigorous circulation of ideas as well as invigorate the Senate and enhance its credibility. However, there was some difference of opinion with regard to the length and renewability of terms.

I pause for questions here, honourable senators, but perhaps questions at the end would be more convenient.

Senator Murray: We have already had a vigorous circulation of ideas tonight, sir.

Senator Hays: For my part, I find the non-renewable 12-year term interesting, since it would allow for a greater turnover of senators while also helping to preserve greater independence from the executive.

Moreover, since the Prime Minister indicated he was willing to entertain amendments pertaining to the length of tenure, when he appeared before committees, we should take a look at a longer term. Before taking a final position on this issue I will listen carefully to the views of my colleagues.

Among other major concerns expressed about Bill S-4 as it stands is the possibility it would allow a Prime Minister in office for two terms to appoint close to the entire Senate and that the renewability of terms would undermine the independence of senators. This concern would not be a problem if we have an elected system; however as it stands, without further reforms, Bill S-4 would actually increase the Prime Minister's control over the Senate.

Honourable senators, in determining what length of tenure would be most appropriate, whether something important might be lost by electing senators, and other issues raised by Bill S-4, I believe it is important to underline that great care must be taken in proceeding with Senate reform. We must take this opportunity to build something even better than what we have, and not just destroy it in the hopes of something better emerging.

Two of our witnesses, Professor McCormick and Mr. Gibson, agreed with that view. In response to a question, Mr. McCormick said, "Political institutions take a long time to build properly and get working, but they are incredibly easy to smash..."

To which Mr. Gibson added, "Whatever happens, the current Senate works. Improve it by all means, but do not make it worse."

Honourable senators, any objective assessment of the Senate and its work confirms that it plays a useful and important role in our parliamentary system, and any reform of the Senate must take this role into account ultimately to produce concrete improvements.

I believe that as we move ahead with this exercise to debate, study, pass, amend or reject Bill S-4, we must remember that any reform to our Senate must be conducted with great care and with the ultimate purpose of improving the institution.

(2040)

In studying Bill S-4, the committee was constantly drawn into further discussion on what I would call "the structure of Senate Reform" or "the role of a modern Senate within our parliamentary structure." There are examples of that today. However, more study needs to be done in this regard. I will argue later this week that the committee continue to explore other possible reforms that can proceed under section 44 and to discuss a model for a modern Senate. The model is not to be proposed as a constitutional initiative, but rather a model that might help senators to better understand how incremental reform might lead to a better Senate.

In short, Bill S-4 and the Murray-Austin motion have placed us in the arena of Senate reform. Both matters are to be seen as only the beginning of a process that, once undertaken, is difficult to stop. It will involve competing interests, differing views and multiple agendas, but it is a task worth undertaking in my opinion and a job worth completing both for the Senate and for Canada.

Senate Reform should be guided by the history, logic and value of the system. We should recognize and build on what is uniquely Canadian about our Senate and avoid importing approaches that, while they may work in other countries and in different contexts, might be completely at odds with our system of government and political culture.

[Translation]

To guide us and perhaps inspire us when we undertake the task awaiting us, I would like to conclude by quoting one of our witnesses, Professor Daniel Pellerin:

What Canada needs is not just a changed or slightly improved Senate but the best Senate we can bequeath to posterity. That is our call and our duty and we should aim for nothing less... only that can be the standard by which our work has to be measured and by which we will stand or fall before those in the years to come who will ask themselves, what did those ladies and gentlemen do for Canada at home?

[English]

Honourable senators, I look forward to our continued study and debate of this issue. I know that with our experience, expertise and institutional memory, we will help to renew a great institution and achieve something of which all Canada will be proud.